In re the Accounting of Maira

Decree unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action to recover for room, board and care rendered to the decedent, we find that it was error to direct a verdict in favor of the executor. Even though both sides moved for a directed verdict, this did not waive the right to trial by jury of the factual issues presented which should have been submitted to it. (CPLR 4401.) Inasmuch as a new trial is required, we desire to point out that it was error to receive testimony by the claimant as to…